Tuesday, July 26, 2016
Drug Possession Defense
The defense of a person charged with possession of Controlled Dangerous Substances (CDS) is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of involvement with controlled dangerous substances . The Municipal Court has jurisdiction to hear the following drug related Controlled Dangerous Substances offenses: NJSA 2C:5 10(a)(4), possession of 50g or less of marijuana or 5g or less of hashish; NJSA 2C:35 10(b), using or being under the influence of CDS; NJSA 2C:35 10(c), failure to deliver cocaine or other CDS to police [County Prosecutors often downgrade possession of small amounts of cocaine to this offense] ; NJSA 2C:36 2, possession of drug paraphernalia At the initial interview the defense attorney must determine what happened, what was told to police and the possible defense witnesses to be interviewed. Defense counsel should completely understand the facts and circumstances of the stop and arrest. Defense counsel should explain to the client the possible penalties which can be imposed.
Depending on the case, County and prior offenses, fees range between $1,000- $7,000. My standard procedure, once we are retained, is to immediately send a discovery letter/letter of representation to both the Prosecutor and the Court Clerk. We try to stay in close contact with the client. I also can provide the client with a brochure setting forth phone numbers and addresses for substance abuse treatment programs with a recommendation they seek help for any problem. Proof of attendance of such a program is of benefit at sentencing or an application for PTI or conditional discharge. A timely Motion to Suppress Evidence must be made pursuant to Rule 3:5 7. Do it immediately, do not wait to receive discovery.
Pre trial Intervention/ PTI If the Suppression Motion is unsuccessful or not a viable option, counsel should discuss the possibility of obtaining Pre trial Intervention. For marijuana and small amounts of cocaine, heard in Municipal Court, N.J.S.A. 2C: 36A 1 provides that a person not previously convicted of a drug offense either under Title 2C or Title 24 and who has not previously been granted "supervisory treatment" under 24:21 27, 2C:43 12 or 2C: 36A 1 may apply for a Conditional Discharge. The court upon notice to the prosecutor and subject to 2C: 36A l(c) may on the motion of the defendant or the court, suspend further proceedings and place the defendant on supervisory treatment (i.e., probation, supervised or unsupervised attendance at Narcotics Anonymous, etc.). Since the granting of a Conditional Discharge is optional with the court, defense counsel should be prepared to prove, through letters, documents, or even witnesses, that the defendant's continued presence in the community or in a civil treatment program, will not pose a danger to the community. Defense counsel should be prepared to convince the court that the terms and conditions of supervisory treatment will be adequate to protect the public and will benefit the defendant by serving to correct any dependence on or use of controlled substances.